DUI and the Intoxilyzer 8000 / 9000 source code

It is my opinion that, in the Treasure Coast, expert testimony in a DUI case does not provide a great deal of benefit to a client in a trial.  Many of these experts have somewhat questionable credentials, have a clear profit motive in testifying, and usually provide scientific evidence that a intelligent, well informed jury panel will both be bored by and reject.  (In contrast, practicing in Gainesville, Florida produced jury pools that were younger, idealistic, and frankly a bit less intelligent, but I've theorized that the less intelligent the juror, the more apt that juror may be to simply side with the intelligent sounding expert).

The exception to this rule, seems to be described today in an opinion handed down by Florida 2nd District Court of Appeals.

CMI, the company who created the "source code" or computer language of the Intoxilyzer 8000 (the old machine used by Florida law enforcement) and the Intoxilyzer 9000  (aka the new / current machine) has gone to great lengths to avoid having its source codes fall into the hands of criminal defense lawyers.  While it is unclear whether CMI fights the disclosure based on a flaw in the code is still unclear, but Florida is an open discovery state, and if they expect to sell their machines here, it's clear that they should expect their machines to be scrutinized.

A jury may never hear from an expect regarding this source code, however the State is likely not to continue prosecuting cases when the source code is made an issue, if CMI continues to drag its feet on handng these codes over.

A copy of the opinion can be found here:

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2010/June/June%2018,%202010/2D09-5502.pdf 

The Right to Remain Silent - Calls from the jail to your lawyer

One of warnings we often have to give clients coming in for criminal consultations becomes not to talk to people about their case.  There is a natural tendency to want to speak with friends, family and neighbors either to explain what happened or simply to try and disprove that anything criminal happened.  Unfortunately, these statements can be used against you, and even a statement which is a complete denial but has any kind of detail can end up painting you into a logistical corner that you may not have intended. 

As lawyers, the general rule is that anything you tell us is confidential.  In March of this year, however, the Supreme Court of Florida ruled in the matter of  McWatters v. State, 35 FLW S 169.  This decision from the holds that if a lawyer has a phone conversation with a client and either of you knew or should  have known the call was being recorded, then the conversation is not privileged.   The theory behind this case that when an otherwise privileged communication is made in front of a third party, that the privilege goes away.  For instance, you can't confess out loud to a murder on a crowded bus and claim that you were only talking to the priest next to you when you said it.

This case really stands as a reminder that sometimes the most damning evidence are the words that an accused person says.  In this day and age, it's always better to assume that someone is listening.

For more info, contact us at http://www.verocriminallaw.com.

Sweeping changes to alimony laws in the State of Florida

On June 3, 2010, Governor Crist signed into law House Bill 907, which makes major changes to Florida's alimony and child support law.

First, I want to explain how the Court is to consider alimony in light of the new law.  In order to determine whether an alimony award is appropriate, the Court must first make a finding that one party actually needs alimony and that the other party has ability to pay alimony, and determine the type and amount of alimony that is appropriate.

The new changes in the law lay out time frames that help make the determination at to what type of alimony is appropriate. 

There is a new rebuttable presumption for the lengths of marriage:

*  less than 7 years is a short term marriage
*  more than 7 but less than 17 is a moderate term marriage, and
*  more than 17 is a long term marriage.

The length of the marriage is generally going to be measured from the date of marriage to the filing of the dissolution petition.

The types of alimony now officially available are:

1. Bridge-the-gap alimony, which is an alimony award to help transition a person from married life to single life.  This form of alimony was generally available in most of Florida before, but is now in the statute.  It is limited to a maximum of  two years and is not modifiable.
2. Rehabilitative alimony is now listed in thge statute.  This type of alimony will require that a spouse file a specific plan that will help get them back on their feet (i.e. by going back to school, having some sepcific job training that will eventually increase income).  This type of alimony may be modified.
3. Durational alimony is now added to Florida law and can be awarded when permanent alimony is not appropriate. It may be modified but the length of the award award cannot exceed the length of the marriage.
4. Permanent alimony is now codified and is awarded based on the needs and necessities during the marriage.  It can awarded in a long term marriage or in a moderate term marriage if there are appropriate factors and even in a short term marriage if there are exceptional factors present.

The changes in the alimony law cannot serve as the basis to modify the type or length of alimony orders entered before July 1, 2010.  For more information contact me by e-mail or by visiting us at http://www.verolaw.net or http://www.verocriminallaw.com

The text of the new statute can be found here:  http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=493857.docx&DocumentType=Amendments&BillNumber=0907&Session=2010